The American College of Emergency Physicians (“ACEP”) and the Medical Association of Georgia (“MAG”) have filed suit against Anthem Insurance Companies, Inc., and two of its subsidiaries – Blue Cross and Blue Shield (“BCBS”) of Georgia, Inc., and Blue Cross Blue Shield Healthcare Plan of Georgia, Inc. – in the U.S. District Court for the Northern District of Georgia in an effort to compel the defendants to rescind its emergency care policy that, the plaintiffs allege, retroactively denies coverage for emergency patients.
The plaintiffs assert in their complaint that over the past year, Anthem implemented its policy in Georgia and five other states, leaving patients who sought emergency care responsible for paying their entire bills if Anthem determined after retrospective reviews that their diagnoses were not truly emergencies. Along with Georgia, the other states are Indiana, Kentucky, Missouri, New Hampshire, and Ohio.
According to the lawsuit, Anthem BCBS of Georgia's policy violates the prudent layperson standard found in 45 C.F.R. § 147.138(b)(4)(i). That standard, the complaint contends, requires insurance companies to cover the costs of emergency care based on a patient's symptoms – not their final diagnosis. The plaintiffs allege that Anthem BCBS of Georgia uses a pre-determined list of undisclosed diagnoses to make its decisions.
Additionally, the lawsuit contends that the company also is violating the 1964 Civil Rights Act because the denials disproportionally affect members of protected classes' access to emergency care.
The complaint asserts that it was precipitated by correspondence in 2017 from the defendants to their insureds in Georgia, Missouri, and Kentucky that stated that the insureds should “[s]ave the ER for emergencies – or you'll be responsible for the cost” and “[s]tarting June 1, 2017 [in Missouri and Kentucky, July 1, 2017 in Georgia], you'll be responsible for ER costs when it's NOT an emergency” (the “ER policy”).
According to the complaint, the ER policy later was expanded to Indiana, New Hampshire, and Ohio.
The complaint adds that, following the correspondence to their insureds, the defendants began retrospectively denying payments to certain healthcare providers, including the plaintiffs' members, for services already rendered by reclassifying emergency department encounters as “non-emergent.”
As a result, according to the complaint, “providers and patients alike are operating in fear of denial of payment by [d]efendants when patients seek emergency department care.”
The lawsuit followed out-of-court actions taken by the plaintiffs and other physicians and physician groups to have the defendants “rescind” the ER policy. For example, on August 1, 2017, ACEP's president, Rebecca B. Parker, M.D., sent a letter to Anthem that stated, “[w]e are concerned that the new enforcement policy by some Anthem plans will have a chilling effect on patients' decisions to seek care, whether for themselves or for a loved one. It will take hearing only a few stories of neighbors, friends, or co-workers who were unexpectedly left with paying an entire ED bill after coverage was denied by an Anthem plan to make policy-holders think twice about seeking care in an emergency. Such hesitation could be life-threatening, or result in even greater costs to the healthcare system down the road.”
According to the complaint, despite ACEP and MAG's efforts, the defendants refused to publicly release the list of diagnosis codes used as a basis for considering which claims to deny in most of the states, including Georgia.
The defendants also allegedly did not respond to a January 16, 2018 letter to Anthem from ACEP and 10 other national medical associations expressing “deep concerns” and asking Anthem to rescind the “harmful” ER policy.
The complaint asserts that, in February 2018, the defendants announced via their website that changes were made to the ER policy, including expanding the list of “always-pay” exceptions to the ER policy, and now requesting medical records from the treating provider each time as part of the claim review process. The announcement also encouraged members to call 911 or go to the emergency department “[i]f you are experiencing a health emergency.” However, according to the complaint, the defendants did not use the prudent layperson standard in describing the changes to the ER policy.
The complaint asserts claims under the Patient Protection and Affordable Care Act (the “ACA”), the Emergency Medical Treatment and Active Labor Act (“EMTALA”), the Employee Retirement Income Security Act of 1974 (“ERISA”), Title VI of the Civil Rights Act of 1964, and various federal and state health regulations.
The lawsuit was filed by Howard W. Reese, IIII, and Brittany H. Cone of Hall Booth Smith, P.C.
Learn more: Anthem Complaint.
Steven A. Meyerowitz
Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. He may be contacted at [email protected].